Ask the Expert: Are Absences Related to Fertility Treatment Covered by the FMLA?

Question: We have an employee who is undergoing fertility treatments out of town and misses days sporadically. Do these absences fall under the Family and Medical Leave Act (FMLA)?

Answer: Great question; complicated answer.

The answer is complicated because a question about FMLA leave is always the start of a longer conversation about whether other federal, state, and local requirements are triggered. For example, even if the employee’s fertility treatments do not qualify for FMLA leave, they may be entitled to unpaid leave as a reasonable accommodation or paid leave under state and/or local sick pay laws. Additionally, any adverse treatment against an employee undergoing fertility treatments could lead to a pregnancy discrimination claim.

The answer is also complicated because FMLA leave always depends on the facts. Further, only a couple of federal district courts have addressed this issue, and those district courts came to different conclusions.

But let’s take a quick look at the relevant law. Employees are entitled to FMLA leave if they have a serious health condition. A serious health condition is an illness, injury, impairment or physical or mental condition that involves (a) inpatient care or (b) continuing treatment by a healthcare provider. Qualifying inpatient care requires an overnight stay in a medical facility, including any period of incapacitation or any subsequent treatment in connection with that inpatient care. Qualifying continuing treatment involves, among other things: (1) a period of incapacitation for more than three consecutive calendar days and any subsequent treatment or period of incapacity relating to the same medical condition; or (2) a period of continuing incapacity due to a chronic health condition that requires periodic visits to a provider over an extended period. Incapacity is the inability to work or perform other regular daily activities based on a serious health condition, its treatment, or its recovery.

So how did the district courts apply the relevant law? In one case, the employee attended fertility treatments 15 times over a year and three months. Based on those facts, the court determined the employee’s infertility might qualify as a serious health condition, and she might be entitled to FMLA leave. In another case, the employee’s fertility treatments never required overnight inpatient care, and the employee attended only three fertility treatments in one week, with each treatment lasting only a few hours. So, it didn’t qualify as a serious health condition, and she wasn’t entitled to FMLA leave.

The upshot? Treat a request for FMLA leave based on fertility treatments like any other FMLA leave request and determine the employee’s eligibility only after reviewing the facts. And as always, loop in employment counsel to discuss other triggered legal requirements and updates in the law.

Steven Eheart is an attorney with Holland & Hart LLP in Denver and can be reached at sdeheart@hollandhart.com.

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